Kubby Re-Sentencing Denied

Vanessa Nelson
The Compassionate Coalition

Judge Cosgrove made a surprising ruling in Placer County Court today,
denying a re-sentencing request that supporters had hoped would mark a
turn towards victory for defendant and medical marijuana patient Steve
Kubby.

The historic Auburn courthouse, with its ornate Classic Revival design and
museum atmosphere, seemed a fitting place for another installment in the
nearly-ancient Kubby case. The legal catastrophe stretches back into the
last century, when Placer County law enforcement searched Kubby's home
directly following his 1998 campaign for governor of California. Agents
found and confiscated medicinal cannabis plants, along with a single
hallucinogenic mushroom stem and a couple peyote buttons tucked away in
the guest bedroom. Kubby was brought to trial on the cultivation charges,
but the jury deadlocked and a mistrial was declared. The remaining
charges, for possession of the mushroom stem and the peyote buttons, were
what the court calls "wobblers," meaning that they could be sentenced as
misdemeanors or as felonies upon the judge's discretion. Judge Cosgrove,
during Kubby's original sentencing, declared the charges to be
misdemeanors and handed down a 12-day jail stay. During a court-approved
trip to Canada before beginning his sentence, Kubby learned that
prosecutors had initiated attempts to have his charges bumped up to
felonies, a move that resulted in increasing the sentence tenfold. Kubby
immediately began a five-year long bid for protection from Canadian Border
Services, only to be ultimately rejected in January of this year and
ordered to return to the United States. Steve was taken into custody as
soon as his plane landed in San Francisco, and was then transferred to
Placer County Jail. His court appearances since then have been packed
full of supporters.

Some of those supporters, including activists with the Sacramento-based
Compassionate Coalition, watched this morning as guards led a shackled
Kubby into the room and seated him at the defense table. Having lost 27
pounds in 37 days of incarceration, Kubby's bright orange jumpsuit fell
baggy on his shrinking frame, eliciting murmurs from the crowd about
health concerns. The longest-living adrenal cancer patient in history,
Kubby is a modern-day medical miracle who attributes his survival to
medicinal cannabis. His buoyant health, however, has deteriorated during
his stay in the Placer County Jail, where he has been deprived of his
medicine of choice and forced to consume a diet his wife Michele describes
as "the lowest-quality available."

The mood of worry changed quickly to one of optimism, as supporters smiled
to see the shackles being carefully removed from Kubby's wrists and
ankles. Kubby, limbs unbound, quickly stretched his shoulders with a
shrug and then leaned over unrestrained to converse with his attorneys.
It was a poignant moment of symbolic freedom that quickly fell short of
its promise.

Under the chandeliered high-ceilings of the ornately-decorated courthouse,
Judge Cosgrove approached his bench and the spectators stood tense with
anticipation. After all, Kubby supporters had every reason for great
expectations from today's hearing on the motion to re-sentence. It marked
a reunification with the judge who originally handed down a light sentence
and thereby appeared sympathetic to Kubby. Hope began to melt into more
ominous feelings, however, as Judge Cosgrove looked down from his high
seat and initiated the court proceedings with the stern-sounding comment,
"It's been a long time."

J. David Nick, taking the lead for the defense, confidently articulated an
argument based on several compelling points. First of all, the defense
attorney stated that there had not been a valid sentencing hearing for
Kubby, as a hearing without the presence of the defendant is a violation
of due process. Also, Nick asserted that since there was no factual
change in the case, then it was an abuse of the justice system for the
appeals court to change Kubby's sentence and charge him as a felon. The
defense attorney claimed that there was no reason for this change, or for
the overly-aggressive nature of the entire case against Kubby...except, of
course, for a political motive. The defense could find no other
explanation for what could land a man in a California jail on felony
charges for first-time drug possession. "This was a political witch-hunt
against Mr. Kubby," claimed Nick, saying that the prosecutors already had
achieved their desired result by preventing Kubby from ever serving in
political office. As a convicted felon, Nick explained to the court,
Kubby would need a governor's pardon before assuming any official
political position. Without that unlikely pardon, he would not be able to
serve in any office, even as a union leader or as a county supervisor. To
silence Kubby, the defense asserted, prosecutors initiated a grievous
miscarriage of justice that has severe moral consequences. "They tortured
him, they tortured his family, they tortured his health," Nick said of
those who have persecuted Kubby. He then wrapped up his argument with the
urging, "We need to do the right thing. What possible justice is served
by having this man in jail, other than to satisfy the prosecution's
penchant for punishment?"

Prosecutor Chris Cattran took specific objection to Nick's final comment,
peppering his argument so heavily with unsubstantiated denials that it
appeared to contain little else. After bumbling over the pronunciation of
the word "hallucinogen," Cattran settled into a simple argument that there
had indeed been a sentencing hearing, as he had seen it himself. He then
used his closing remarks to once again accuse Kubby of violating probation
and fleeing to Canada.

Judge Cosgrove inquired about the status of the violation of probation
charges, and was informed by counsel that a hearing was pending. Upon a
quick scan of the relevant court records, the judge declared that he
disagreed with the assertion that Kubby had gone without a valid
sentencing hearing, and thereby refused to modify the jail sentence.
Judge Cosgrove then ordered the case to be sent back to the previous
judge, Robert McElhany.

The defense had expected a different decision from Judge Cosgrove.
Following the court proceedings, Attorney J. David Nick shook his head and
said with gloom, "I thought Cosgrove would have been a little more willing
to seek justice."

Cattran made a hasty exit following the proceedings. Activists eager to
speak to the prosecutor surmised that he had easily evaded their
questioning by slipping out one of the many doors in the labyrinth-like
courthouse. It won't be the last time, however, that courtroom spectators
will have a chance to interrogate Mr. Cattran. He has been prosecuting
the case for years, and it shows no sign of letting up any time soon.

Meanwhile, Kubby wastes away in jail, and his defense team pushes on with
their fight.

"I don't have faith in any judge," J. David Nick told reporters outside
the courtroom. "I only have faith in the jury system."

And that may indeed be Kubby's last hope in a battle that is not just
about legal victory, but about life itself.

Steve Kubby will be back in court on March 14th at 8:30am
Placer County Court Dept. 13, 2775 Richardson Drive in Auburn, CA